Bug#310994: ITP: openttd -- open source clone of the Microprose game "Transport Tycoon Deluxe"
Michael K. Edwards
> On 5/27/05, Matthijs Kooijman <m.koo...@student.utwente.nl> wrote:
> > Package: wnpp
> > Severity: wishlist
> > Owner: Matthijs Kooijman <m.koo...@student.utwente.nl>
> >
> >
> > * Package name : openttd
> > Version : 0.4.0.1
> > Upstream Author : Various
> > * URL : http://www.openttd.org/
> > * License : GPL
> > Description : open source clone of the Microprose game "Transport Tycoon Deluxe"
> >
> > I am working on this package and would like to see it in debian. I am still
> > looking for a sponsor until I can apply as NM.
>
> As far as I understood it, it requires media files from the original
> game. Is this correct? Or are there free media files available?
That's correct; and, with or without that dependency, OpenTTD
infringes the copyright on Transport Tycoon Deluxe under a "mise en
scene" theory, as discussed on debian-legal. (Not to say there's a
consensus or anything; but it's not that complicated an issue, and you
can draw conclusions from cases like Micro Star v. FormGen even if
YANAL.) Though it looks like a lot of fun, OpenTTD belongs on an
abandonware site and not on the Debian mirror network, even in
non-free.
The same, really, applies to freeciv and the innumerable clones of
games, from Pac-Man to Doom, with anything resembling characters and a
storyline; but that's not a problem for debian-mentors.
Cheers,
- Michael
(IANADD, IANAL, TINLA)
Joey Hess
> The same, really, applies to freeciv and the innumerable clones of
> games, from Pac-Man to Doom, with anything resembling characters and a
> storyline; but that's not a problem for debian-mentors.
Hmmmm.
BTW, doom is open source software and is not a clone.
--
see shy jo
Matthijs Kooijman
> infringes the copyright on Transport Tycoon Deluxe under a "mise en
> scene" theory, as discussed on debian-legal. (Not to say there's a
> consensus or anything; but it's not that complicated an issue, and you
> can draw conclusions from cases like Micro Star v. FormGen even if
> YANAL.) Though it looks like a lot of fun, OpenTTD belongs on an
> abandonware site and not on the Debian mirror network, even in
> non-free.
I have posted this issue on debian-legal before, where people seemed to agree
to put it into contrib, which is what I am planning to.
OpenTTD has IMHO nothing to do with abandonware, since it is still actively
maintained and improved. Actually, there is an immense difference between the
original TTD and OpenTTD by now.
(I am aware that "an immense difference" doesn't really buy you anything,
legally)
> The same, really, applies to freeciv and the innumerable clones of
> games, from Pac-Man to Doom, with anything resembling characters and a
> storyline; but that's not a problem for debian-mentors.
I expect that this discussion has already been done for those games and that
apparently the consensus was to do include them.
Gr.
Matthijs
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Michael K. Edwards
> > infringes the copyright on Transport Tycoon Deluxe under a "mise en
> > scene" theory, as discussed on debian-legal. (Not to say there's a
> What do you mean by that exactly?
A video game with even the skimpiest of original story lines (see Duke
Nukem 3-D, as described in Micro Star v. FormGen) is a "literary or
artistic work" at run-time, over and above the expressive content of
its source code. Hence an additional form of "copyright infringement"
is possible -- the creation of an unauthorized "sequel" using the
original's characters and "mise en scene" (a term borrowed by lawyers
from the theater; imagine the accent grave).
The right to create sequels is reserved to the copyright holder,
absent the sort of potent First Amendment defense which prevailed in
SunTrust Bank v. Houghton Mifflin ("The Wind Done Gone"). Similar
reasoning holds in many non-US jurisdictions, under national
implementations of Article 2.3 of the Berne Convention.
OpenTTD -- a reimplementation of Transport Tycoon Deluxe with
enhancements -- is precisely such an "unauthorized sequel". It may
not have "characters", but it has some story line and has "mise en
scene" out the wazoo. Basically harmless, if TTD is abandonware; but
unambiguously (IANAL) an infringement of the copyright on the
original, whether any literal copying is involved or not.
> I have posted this issue on debian-legal before, where people seemed to agree
> to put it into contrib, which is what I am planning to.
> OpenTTD has IMHO nothing to do with abandonware, since it is still actively
> maintained and improved. Actually, there is an immense difference between the
> original TTD and OpenTTD by now.
> (I am aware that "an immense difference" doesn't really buy you anything,
> legally)
Unfortunately, the people who agreed to that don't seem to be applying
a sufficient knowledge of the law. I myself am no lawyer, nor am I a
DD, nor have I been a debian-legal denizen for long; but I fear I have
the misfortune of being right on this one, consensus or no consensus.
> > The same, really, applies to freeciv and the innumerable clones of
> > games, from Pac-Man to Doom, with anything resembling characters and a
> > storyline; but that's not a problem for debian-mentors.
> I expect that this discussion has already been done for those games and that
> apparently the consensus was to do include them.
Apparently so. Lots of things get onto Debian's mirror network
without the degree of scrutiny that an organization with assets to
protect should be applying.
Cheers,
- Michael
Raul Miller
> On 5/27/05, Matthijs Kooijman <m.koo...@student.utwente.nl> wrote:
> > > That's correct; and, with or without that dependency, OpenTTD
> > > infringes the copyright on Transport Tycoon Deluxe under a "mise en
> > > scene" theory, as discussed on debian-legal. (Not to say there's a
> > What do you mean by that exactly?
>
> A video game with even the skimpiest of original story lines (see Duke
> Nukem 3-D, as described in Micro Star v. FormGen) is a "literary or
> artistic work" at run-time, over and above the expressive content of
> its source code. Hence an additional form of "copyright infringement"
> is possible -- the creation of an unauthorized "sequel" using the
> original's characters and "mise en scene" (a term borrowed by lawyers
> from the theater; imagine the accent grave).
There's a difference between the kind of thing prohibited in the
Duke Nukem case and the kind of thing permitted in the Nintendo
case (Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.). In both
cases, the "scene" changed.
In the Duke Nukem case, the additional scene elements were
"permanent" -- new scene elements were added to the game
data.
In the Nintendo case, the changed scene elements were
"ephemeral" -- they only existed at execution time.
In my opinion (one M.K.Edwards does not share), OpenTTD is more like
the Nintendo case than the Duke Nukem case. We're dealing with an
alternate game engine here (which is primarily functional in
character). If you use the original game engine, at all, the
"changes" introduced by OpenTTD vanish. In other words, these
changes appear to be ephemeral.
Since the court is treating these cases using concepts from theatre,
an analogy might be relevant: The Nintendo case was analogous
to presenting the play on a different stage. The Duke Nukem case
was analogous to presenting the play with a revised script.
--
Raul
Francesco Poli
> BTW, doom is open source software and is not a clone.
AFAIK, the Doom game engine is free software, but the original Doom game
data are still proprietary.
There are free reimplementations of the game data (such as
http://freedoom.sourceforge.net/), but (maybe) they are infringing on
the original Doom game data copyright... :-/
--
:-( This Universe is buggy! Where's the Creator's BTS? ;-)
......................................................................
Francesco Poli GnuPG Key ID = DD6DFCF4
Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4
Anonymous
>http://freedoom.sourceforge.net/), but (maybe) they are infringing on
>the original Doom game data copyright... :-/
then I'm nearly certain they are infringing the copyright via
"mise-en-scene". The debate over openTTD is whether or not recreating a game
engine is a violation of copyright.
The game engine consists of the interface, and the game rules, both of which
are thought by (at least) some, to be un-copyrightable.
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Raul Miller
> Francesco Poli wrote:
> >http://freedoom.sourceforge.net/), but (maybe) they are infringing on
> >the original Doom game data copyright... :-/
> If they are striving for near exact (or even very, very similar) re-creation
> then I'm nearly certain they are infringing the copyright via
> "mise-en-scene".
If you're talking about cloning the game data, then this would be a
more direct infringement than mise-en-scene.
The one case to make a significant point involving mise-en-scene
had a massive amount of new game data which was meant to
be integrated with the existing game data, thus creating a "sequel".
There was more going on than that, of course, but it was literally
a new game put together using art and resources provided by
Formgen, but being marketed and sold by Microstar. (Without
a license from Formgen.) Mise-en-scene was used to explain
why the work was a protected work even though all Microstar
was selling was the changes.
--
Raul
Michael K. Edwards
> The one case to make a significant point involving mise-en-scene
> had a massive amount of new game data which was meant to
> be integrated with the existing game data, thus creating a "sequel".
>
> There was more going on than that, of course, but it was literally
> a new game put together using art and resources provided by
> Formgen, but being marketed and sold by Microstar. (Without
> a license from Formgen.) Mise-en-scene was used to explain
> why the work was a protected work even though all Microstar
> was selling was the changes.
I'm sorry, but Raul is misreading this. Micro Star was marketing a CD
full of user-created levels, no more and no less. They didn't copy or
distribute a single byte created by FormGen, and their product was not
usable without a copy of Duke Nukem. They also got nailed for putting
screenshots on the box, but the judge very explicitly said that the
contents were infringing either way.
The "Game Genie" case (Galoob) was a generic "cheat code" widget that
substituted the odd byte in order to add lives and power-ups and all
that, and was in no sense a substitutable good for the console, the
game cartridge, or a sequel to any particular game. The "game system
emulator" makers who won -- Sony v. Connectix, Sony v. Bleem -- won
because they copied the minimum needed for interoperability with a
content-neutral machine. You cheat -- as in Atari v. Nintendo -- you
lose.
The bottom line is, whichever piece you're distributing -- a cloned
game engine, a replacement set of data, a set of new levels for the
existing game engine, a complete clone with no literally copied code
or images -- if you're piggy-backing on a specific extant game, you're
infringing its copyright. (Not if it's so simple as to be
uncopyrightable; but that doesn't fit the likes of TTD or Civ III.)
The OpenTTD engine is so far from being content-neutral it's not even
funny. The only thing that it can be used for is playing a tweaked
version of TTD. Tweaked or not, it infringes the TTD copyright. It
doesn't belong in Debian -- and neither does freeciv or any other game
clone.
And yes, Debian and its assets can be gotten at by the law,
corporation or no corporation. Every bank account mentioned in the
DPL's report, every owner of a machine in the debian.org DNS, every
individual in the chain of custody of those packages (which means
maintainers, ftpmasters, mirror operators) is a potential Roe or Doe.
Let Debian mutate into a grab bag of abandonware (and clones of
abandonware), and sooner or later somebody's going to track down and
buy up a few of those copyrights and file suit. They will (IANAL) get
money from Debian, maybe a lot of money. And Debian will get some
very bad press. Is this an operating system or a game graveyard?
With respect to the mirror network, they will probably only get
injunctive relief; depending on how lax Debian's policies can be
demonstrated to be, that could be as severe as blocking whole sections
of the archive until they are audited for other people's code. That
depends on what cards the plaintiff is holding. If all they have is
some game copyrights, they can probably only block games, but if they
are holding, say, copyright on WASTE plus a couple of exclusive patent
licenses, and if they can make a case that some people within Debian
are running a conspiracy to subvert software IP generally, it could
get nasty.
Don't get me wrong. I am not interested in making that case myself
with regard to Debian. On the contrary; I don't want to see Debian
get Napstered. Putting obviously infringing stuff onto the mirror
network is just begging for trouble. It's not like it's that hard for
people to set up their own repositories; let them gamble with their
own assets.
Cheers,
- Michael
Nathanael Nerode
> The "Game Genie" case (Galoob) was a generic "cheat code" widget that
> substituted the odd byte in order to add lives and power-ups and all
> that, and was in no sense a substitutable good for the console, the
> game cartridge, or a sequel to any particular game. The "game system
> emulator" makers who won -- Sony v. Connectix, Sony v. Bleem -- won
> because they copied the minimum needed for interoperability with a
> content-neutral machine. You cheat -- as in Atari v. Nintendo -- you
> lose.
>
> The bottom line is, whichever piece you're distributing -- a cloned
> game engine, a replacement set of data, a set of new levels for the
> existing game engine, a complete clone with no literally copied code
> or images -- if you're piggy-backing on a specific extant game, you're
> infringing its copyright.
For one thing, the Microstar case gives a specific exception regarding new
levels, namely those which could work with a different game and be used to
tell entirely different stories. "Transformative", presumably.
Replacement data which is transformative would presumably be equally
protected.
The engine is pretty much a purely functional program in many cases;
particularly when it functions on arbitrary user-generated data. Do you
have case law to the contrary? I'd be interested to see it.
Of course, the right to write clones of functional applications was actually
legally established, though again I can't find the case name (aargh). (The
clone I remember the case being about was *really* *really* close in UI,
differing only in the color scheme and trademarks.)
>From now on consider the case of a complete clone with no direct copying
*only*.
> (Not if it's so simple as to be
> uncopyrightable; but that doesn't fit the likes of TTD or Civ III.)
Also not if the doctrine of merger applies, or if the material is
insufficiently creative (too close to factual), and I'd argue strongly that
one or the other applies to nearly everything in TTD, barring the artwork
and sound. I've played a lot of games in the genre, and they really are
all *very* close in many ways.
(The biggest competitive difference between sims of this type -- those which
do transport-modelling -- is in the detailed numbers and algorithms of the
world model/AIs, determining how "balanced" and therefore fun the game is.
That basically can't be lifted from proprietary games without looking at
the code. The other difference is exactly which things they choose to make
user-managed and which they choose to make computer-managed or abstracted,
but even those choices are usually very similar.)
Also suppose that it differs substantially in the very few remaining
arbitrary and creative portions, such as (in TTD) the list of available
train engines. If it doesn't, consider that that similarity may be de
minimus, or indeed factually based.
> The OpenTTD engine is so far from being content-neutral it's not even
> funny.
:-(
> The only thing that it can be used for is playing a tweaked
> version of TTD. Tweaked or not, it infringes the TTD copyright. It
> doesn't belong in Debian
OK... (given what you said about decompiled code and so forth)
> -- and neither does freeciv or any other game clone.
No. This is wrong. (Well, actually, it may depend on the meaning of clone
here. For one thing computer program clones are *never* perfect copies and
don't even try to be; normally they try to have a superset of functionality
and a very close UI.) There are definite issues with particular clones,
but saying "any other game clone" is clearly wrong.
Using the same argument you appear to be using, it would seem that Transport
Tycoon (and many other games) infringes the copyrights of Railroad Tycoon
and SimCity; every flight simulator on the market infringes the copyright
of the first one; Sim Theme Park infringes the copyright of Rollercoaster
Tycoon; et cetera. The fact that many of these copyrights are owned by
rich and intermittently litigious corporations, yet game clones keep being
sold openly, indicates that this argument is not taken seriously.
Or perhaps I have misconstrued your argument, and you are saying something
far narrower?
Of course, the right to write clones of functional applications was actually
legally established, though again I can't find the case name (aargh). (The
clone I remember the case being about was *really* *really* close in UI,
differing only in the color scheme and trademarks.)
"Clones" really do have to be looked at on a case-by-case basis.
--
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Nathanael Nerode
Michael K. Edwards wrote:
> The right to create sequels is reserved to the copyright holder,
> absent the sort of potent First Amendment defense which prevailed in
> SunTrust Bank v. Houghton Mifflin ("The Wind Done Gone"). Similar
> reasoning holds in many non-US jurisdictions, under national
> implementations of Article 2.3 of the Berne Convention.
Actually, it's stronger outside the US, in countries which don't have a
strong free speech right, which consider copyright to be a natural right,
and other bad things like that. In the US the sequel-creation right is
seriously hedged in by the First Amendment; not so in some other countries.
...
> OpenTTD -- a reimplementation of Transport Tycoon Deluxe with
> enhancements -- is precisely such an "unauthorized sequel". It may
> not have "characters", but it has some story line
"Some people run companies which transport things, and try to make money."
Perhaps a story line, but the story line is a cliche.
> and has "mise en
> scene" out the wazoo.
> Basically harmless, if TTD is abandonware;
Consider that it has an official "successor" by the same author. Oh, but
copyright a different company. Do you think maybe he plagarized himself?
(Just to throw confusion into the mix....)
The problem of being effectively unable to legally reproduce or make
derivative works from out-of-print copyrighted published material is
beginning to come to a head for other reasons. This is a case where the
current statute law is not on the side of sanity or freedom -- but due to
the nature of the situation, people almost never get sued -- and something
will have to give, eventually. Well, who knows what will happen; it's not
immediately relevant.
> but unambiguously (IANAL)
Non-literal copying is *always* ambiguous. (With the possible exception of
things corresponding to direct translations.) If I got one thing out of
reading copyright cases in the US, I got that. In the realm of computer
programs, it's even worse: there aren't many precedents, they tend to
contradict each other, and some of them are clearly wrong. IANAL, of
course, but I think I can fairly claim that it's muddled!
> an infringement of the copyright on the
> original, whether any literal copying is involved or not.
But you claimed earlier that something close to literal copying *was*
involved. If there is actually decompiled code from TTD in OpenTTD, that's
completely unacceptable (mechanical translation of copyrighted material),
and for this case we wouldn't have to think about the ambiguous and
confusing parts of copyright law.
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Michael K. Edwards
[more stuff where we agree]
> > Basically harmless, if TTD is abandonware;
> Consider that it has an official "successor" by the same author. Oh, but
> copyright a different company. Do you think maybe he plagarized himself?
> (Just to throw confusion into the mix....)
That can happen. Check out Mitek v. ArcE. In this instance, the
district court found the facts to be against the claim of
infringement, and the appeals court affirmed; but it is quite possible
for an author to plagiarize his own previous work. Style, however, is
inalienable, even in a one-man genre -- see Fantasy, Inc. v. Fogerty,
984 F.2d 1524 (9th Cir. 1993). The "successor" was probably
reimplemented from the ground up using Chris Sawyer's ideas, methods
of operation, and style but new code and artwork.
> The problem of being effectively unable to legally reproduce or make
> derivative works from out-of-print copyrighted published material is
> beginning to come to a head for other reasons. This is a case where the
> current statute law is not on the side of sanity or freedom -- but due to
> the nature of the situation, people almost never get sued -- and something
> will have to give, eventually. Well, who knows what will happen; it's not
> immediately relevant.
This is not a new problem. Ever sung in a community choir with a
classical bent? A large fraction of the repertoire is out of print,
and if you want to sing them you have to harass publishers for
permission to photocopy, borrow copies from a choir in a neighboring
town, or (for older works) find a copyright-expired or free-as-in-beer
arrangement (generally poorly edited) and correct it yourself. That's
life on the fringe of the commercially viable, and it wasn't much
different a century ago, except that hand-copying was more work.
In the pop music industry, they have a (partial) solution to this
problem called "compulsory mechanical license", which is in 17 USC
115. That's very much a publisher's game, though; the paperwork
requirement is way too high for a community-scale performance. So if
you try all the official routes and can't get legal copies, then maybe
once in a while you cross your fingers and Xerox your personal copy,
trusting to "fair use". But if that gets to be a habit you can wind
up in deep doo-doo -- especially if your diligence with respect to the
official routes lapses, or you start picking music because it's in
that gray area.
Some people try to justify wholesale rip-offs of recorded-music
publishers using a specious "out-of-print works are hard to get
legally" reductio ad absurdum. I'm not saying you (Nathanael) are
justifying this, nor am I particularly hostile to
home-recording-quality concert bootlegs, small-run community choir CDs
sent to friends and relatives, or a compilation CD for a 15-year-old's
friend's birthday. But personally, I draw the line at ripping one or
two tracks off a CD and then reselling it used; and I am not a rich
man.
I look around and see people not buying pre-recorded CDs at all, or
buying one and passing the ripped bits to nineteen acquaintances, and
that kinda pisses me off. Why do you think self-publishers and indie
record labels struggle? Do you think Tom Lehrer would ever have
played Carnegie Hall if his cult following could have passed ripped
bits around instead of sending three bucks to his P. O. Box? Would I
ever have run across the gems in Gilmour's Albums if there were no
market for commercial re-publication of lovingly selected tracks from
old records?
Which is more important: protecting the consumer from the risk that
something might go out of print, or improving the likelihood that it
might get created in the first place? And which is nicer to have -- a
Xerox copy of the children's book you and your brother both loved
best, or a reissued edition with non-toxic colors that your daughter
can chew on between readings? (If some reader is feeling generous, he
or she can send me an eight-dollar copy of "Epaminondas and His
Auntie" for my daughter and a 1912 edition of "Best Stories to Tell to
Children" for myself. I promise to handle the race issues
sensitively, just like my Dad did.)
Now that print-on-demand is almost price-competitive with conventional
printing (for instance, check out Beard Books for classic works by
Thurman Arnold), maybe we could use a compulsory license system for
unpretentious paperback editions of books at least 17 years old. And
maybe Mickey Mouse and James Bond should be allowed to join Sherlock
Holmes and Santa Claus among the fictional characters available for
recycling by all comers. Once we've got good legislative compromises
in place for these genuinely contentious issues, I might start caring
about creating a legal status for abandonware video games.
Cheers,
- Michael
Raul Miller
> On 5/30/05, Raul Miller <moth....@gmail.com> wrote:
> > The one case to make a significant point involving mise-en-scene
> > had a massive amount of new game data which was meant to
> > be integrated with the existing game data, thus creating a "sequel".
> >
> > There was more going on than that, of course, but it was literally
> > a new game put together using art and resources provided by
> > Formgen, but being marketed and sold by Microstar. (Without
> > a license from Formgen.) Mise-en-scene was used to explain
> > why the work was a protected work even though all Microstar
> > was selling was the changes.
>
> I'm sorry, but Raul is misreading this. Micro Star was marketing a CD
> full of user-created levels, no more and no less. They didn't copy or
> distribute a single byte created by FormGen, and their product was not
> usable without a copy of Duke Nukem.
Nevertheless, the game people would play was put together using
art and resources provided by Formgen combined with scene details
distributed by Microstar.
--
Raul